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2009 DIGILAW 350 (KAR)

M. MAHADEVA GOWDA v. STATE OF KARNATAKA

2009-06-03

P.D.DINAKARAN, V.G.SABHAHIT

body2009
JUDGMENT This appeal is filed by the petitioner in W.P. No. 19446 of 2007 being aggrieved by the order dated 20-8-2008, wherein the learned Single Judge of this Court has declined to interfere with the order of the second respondent dated 9-10-2007, rejecting the application of the petitioner-appellant herein for renewal of lease and has dismissed the writ petition. 2. The appellant herein filed W.P. No. 19466 of 2007 averring that the District Forest Officer, South Kanara, by order dated 30-9-1957, leased an area of 5 acres of land in Kidur Reserve Forest of Dakshina Kannada District in Sullia Taluk in favour of the petitioner's father for raising Arecanut plantation and the said lease was for a period of 50 years. Under Clause 27 of the said order, lease was liable to be renewed on application filed within three months before the expiry of the grant. By anther order dated 1-5-1965, another area of 5 acres of forest land inside Kidur Reserve Forest was sanctioned for raising arecanut plantation on the same terms and conditions and the said lease was for a period of 25 years. The petitioner has raised arecanut plantation in the aforesaid area in terms of the above said orders granting lease. At the time when the forest land was handed over, it was a dry hilly land and after removing and clearing the entire forest trees, the barren land was handed over to the petitioner. The petitioner has converted the said land as a fully developed arecanut garden with incidental crops like coconut, jackfruit, cocoa, etc. 2.1 The petitioner made an application to the Central Empowered Committee at New Delhi for the purpose of renewing the lease in favour of the petitioner covered by the aforesaid grants. In the month of January 2006, the Central Empowered Committee issued notice of the enquiry of the application submitted by the petitioner by notice dated 28-2-2007 fixing the application for enquiry at new Delhi. The petitioner submitted a representation dated 15-3-2007 requesting the aforesaid Committee to conduct sittings in the State of Karnataka either at Bangalore or at Mangalore since the petitioner was not in a position to go to New Delhi, which is far away. The Central Empowered Committee has not conducted any sittings thereafter and the application submitted by the petitioner as per Annexure-D to the writ petition is pending consideration. The Central Empowered Committee has not conducted any sittings thereafter and the application submitted by the petitioner as per Annexure-D to the writ petition is pending consideration. 2.2 The petitioner submitted an application on 13-12-2006 to the State of Karnataka through the Hon'ble Chief Minister and received intimation that the said application has been forwarded to the Chief Secretary to the State of Karnataka, Forest Department for consideration. The petitioner made a number of representations to the State Government and to the Chief Conservator of Forest and also the second respondent for considering the case of the petitioner for renewal of lease covered by order dated 30-9-1957. The State Government did not take any decision in the matter. It is stated that the decision is to be taken after obtaining prior approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980. Papers of the petitioner have not been forwarded by the State Government for obtaining the prior approval of the Central Government. Meanwhile, the Deputy Conservator of Forest has ordered that the application of the petitioner for renewal of lease is liable to be rejected and while passing the said order impugned in the writ petition, the second respondent did not send any notice to the petitioner. He has totally proceeded on wrong assumption and presumptions. He has proceeded on the basis that the forest offence was registered against the petitioner in Case No. 38/03-04 on the ground that the petitioner has encroached certain other forest areas. The said aspect was totally incorrect. The petitioner's father had obtained permission for constructing the residential house from the Forest Department. The buildings have been constructed four decades prior to the date of filing of the writ petition by the father of the petitioner. There is no encroachment in the forest area and wherefore, the petitioner sought for quashing of the order dated 9-10-2007 passed by the second respondent rejecting renewal of lease granted in his favour. 3. The buildings have been constructed four decades prior to the date of filing of the writ petition by the father of the petitioner. There is no encroachment in the forest area and wherefore, the petitioner sought for quashing of the order dated 9-10-2007 passed by the second respondent rejecting renewal of lease granted in his favour. 3. Learned Single Judge after hearing the learned Counsel appearing for the writ petitioner and the learned Additional Government appearing for respondents 1 to 4, by order dated 20th August, 2008, held that: the lease granted in favour of the petitioner in respect of 5 acres of land in Kidu Reserve Forest for the purpose of arecanut cultivation expired on 30-9-2007 and the petitioner has encroached about 3.15 acres of forest land adjoining the land leased to the petitioner; in view of the judgment of the Apex Court in T.N. Godavarman Thirumulpad v Union of India and Others, the second respondent has rightly rejected the application of the petitioner for renewal of lease in respect of the said 5 acres of land, which is in the forest area and the said order impugned in the writ petition is justified and does not suffer from any error or illegality and no fault could be found with the impugned order. Learned Single Judge further held that there was no merit in the writ petition and accordingly, dismissed the writ petition. That being aggrieved by the said order of dismissal of the writ. petition, the writ petitioner has preferred this appeal. 4. We have heard the learned Counsel appearing for the appellant and the learned Government Advocate appearing for the respondents. 5. Learned Counsel appearing for the appellant submitted that the impugned order rejecting the application of the appellant-writ petitioner for renewal of the lease granted in his favour is illegal. Appellant had been granted lease on 30-9-1957 for a period of 50 years. There is a renewal clause in the said lease deed and the lease ought to have been renewed. The appellant has not encroached upon any forest area and wherefore, the learned Single Judge ought to have set aside the order passed by the second respondent declining renewal of lease granted in favour of the appellant and the order dismissing the writ petition is liable to be set aside. The appellant has not encroached upon any forest area and wherefore, the learned Single Judge ought to have set aside the order passed by the second respondent declining renewal of lease granted in favour of the appellant and the order dismissing the writ petition is liable to be set aside. In support of his contention, he has relied upon the decision of the Hon'ble Supreme Court in Jawahar Lal Sharma and Another v Divisional Forest Officer, Uttar Pradesh and Another. 6. Learned Government Advocate appearing for the respondents argued in support of the order passed by the learned Single Judge and submitted that the land in respect of which lease was granted to the appellant is in forest area and in view of the principles of Forest (Conservation) Act and the decision of the Hon'ble Supreme Court in T.N. Godavarman's case, lease could not be renewed and wherefore, the order passed by the learned Single Judge is justified and there is no merit in this appeal. 7. We have given careful consideration to the contentions of the learned Counsel appearing for the parties and scrutinised the material on record. 8. The material on record would clearly show that the appellant's father was granted lease in respect of 5 acres of land in Kidur Reserve Forest of Dakshina Kannada District in Sullia Taluk by the District Forest Officer, South Kanara, by order dated 30-9-1957 for a period of 50 years. The said lease expired on 30-9-2007. The material on record would also show that the appellant-writ petitioner has encroached upon 3.15 acres of forest land adjoining the land leased to him. In view of the provisions of the Forest (Conservation) Act and the decision of the Hon'ble Supreme Court in T.N. Godavarman's case, it is clear that renewal of lease cannot be granted in respect of the lands situate in forest area. The fact that the lease was granted in forest area for a period of 50 years and the period of lease has expired on 30-9-2007 is not disputed. The appellant cannot claim renewal of lease as of right. The fact that the lease was granted in forest area for a period of 50 years and the period of lease has expired on 30-9-2007 is not disputed. The appellant cannot claim renewal of lease as of right. In view of the directions of the Hon'ble Supreme Court in T.N. Godavarman's case, and also the fact that the land in respect of which lease was granted to the appellant is in Kidu Reserve Forest area and the appellant has encroached upon the forest area to an extent of 3.5 acres and case has been registered in that regard, it is clear that the order passed by the second respondent declining renewal of lease to the appellant is justified and the decision relied upon by the learned Counsel appearing for the appellant in Jawahar Lal Sharma's case is not helpful to him in the present case in view of the decision of the Hon'ble Supreme Court in T.N. Godavarman's case, wherein it is clearly held that renewal of lease of forest land without obtaining prior approval of the Central Government is void. In the present case, the State Government having found that the appellant is not entitled to renewal of lease in view of the above said facts, has chosen to reject the application of the appellant for renewal of lease in his favour and the said order is justified and does not suffer from any error or illegality as to call for interference in exercise of writ jurisdiction of this Court. Accordingly, we hold that the order passed by the learned Single Judge is justified and does not suffer from any error or illegality as to call for interference in this intra-Court appeal and pass the following order.- The writ appeal is dismissed.